When an unmarried New Jersey resident destroys property that belongs to another individual, he or she may be committing criminal mischief under the New Jersey Prevention of Domestic Violence Act (“PDVA”). Despite this, married spouses in the state are generally deemed to own all marital property jointly. This means a spouse who destroys marital property is also ruining his or her own property. Until recently, it was unclear whether such an act could be considered domestic violence under New Jersey law.
New Jersey’s Prevention of Domestic Violence Act was created to provide the victims of domestic violence in our state with comprehensive protections. In order to seek protection under this specific body of the law, a victim must have suffered at least one of the particular domestic violence acts set forth in in the statute (known as Prong 1 under a case known as Silver vs. Silver) AND, in addition, the court must conclude that the victim of the domestic violence has an ongoing need for protection from the perpetrator (Prong 2). If both prongs are not met, the court will not grant a final restraining order ( an “FRO”).
A victim may be a current or former spouse or household member, a co-parent or person who is expecting a child soon, or an individual who is in a dating relationship with an alleged perpetrator. It is important to note that a household member is not required to be a romantic partner, and New Jersey courts have, more recently, opted to construe what constitutes a “dating relationship” liberally.
A recent ruling by the New Jersey Court of Appeals clarifies the standard of proof required in obtaining a Final Restraining Order (a/k/a an “F.R.O.”). This ruling affirms a court’s authority to use discretion to weigh evidence in restraining order proceedings. If you are being harassed by a spouse, significant other, a person you’ve lived with, or have a child with, you should contact a New Jersey family law attorney right away.
Although married for several years, Gandy and Blaine experienced irreconcilable differences, so they moved into separate residences and later obtained a divorce in 2012. There were two children born during the marriage, and Gandy and Blaine shared custody. The relationship between Gandy and Blaine seemed plagued with a history of hostility. In May 2013, Gandy claims that Blaine came to pick up the kids, but while he was waiting in the driveway he appeared to be doing something behind Gandy’s car. When Gandy came to the door of her residence, Blain walked out from behind Gandy’s car and around some bushes in order to proceed up Gandy’s walkway. Continue reading
If a person feels that his or her life, safety, or health is at risk because of the acts or threats of another person, he or she may be able to obtain a temporary restraining order from a judge in New Jersey. The Prevention of Domestic Violence Act of 1991, N.J.S.A. 2C:25-17 et seq is the body of law in New jersey that was enacted, and designed to provide a swift remedy to protect a victim from abuse. Similarly, if you are a defendant that believes you were wrongfully accused of having committed an act of domestic violence, the consequences of having a restraining order entered against you can have long term impact.
Domestic violence is pervasive. It knows no socio-economic boundaries. If you are the victim of domestic violence, or if you have been accused of committing an act of domestic violence, you should call an experienced, licensed domestic violence attorney in New Jersey to zealously represent your rights.
Procedurally, a victim of domestic violence may seek a temporary restraining order (T.R.O.) from a Superior Court judge in the family division of the county court where the alleged act of domestic violence occurred, the county where the victim resides, or where the defendant resides. If the Superior Court is closed at that time, the victim should immediately contact the local police department who will then contact the municipal court judge. The municipal court judge will speak with the victim by telephone to ascertain the facts. The judge will then decide if the victim has described a set of facts that are sufficient to obtain a TRO. If the judge decides to grant the TRO to the victim, the police will prepare and serve the TRO on the defendant immediately. In many instances, the victim is granted the exclusive use and occupancy of any shared residence the two people had occupied up until the alleged act occurred. In addition, the victim is presumptively entitled to temporary custody of any minor child. The court will schedule the matter for a hearing within the next 5-10 days to allow the defendant to tell his or her side of the story. Keep in mind, a TRO, if issued, is frequently issued without the judge hearing the defendant’s version of what may have transpired. Generally, our legal justice system does not so drastically effect a person’s rights and due process without a hearing. However, because of the need to balance the immediate protection of a potential victim of domestic violence, the remedy is swift. To balance that significant impact on a person’s due process whereby a defendant in many instances will be denied the opportunity to be heard before he or she is literally removed from one’s home, the court must hold a hearing fairly quickly as well. This hearing is when the court will decide if the TRO should now become a final restraining order (‘FRO”) if the victim proves his or her allegations or, if the defendant can successfully defend against those allegations, the judge will dismiss the TRO and the restraints against the defendant will be vacated.